Clark v Flanagan [1934] HCA 73

the respondent. The Supreme Court held that in so finding the Cor had not erred in law. Upon the hearing of an appeal therefrom, the

Held that the worker had not established that his injury arose out in the course of his employment, and therefore the appeal must be dismiss

Decision of the Supreme Court of New South Wales (Full Court) affirmed.

Case SraTED. A case stated by the Workers' Compensation Commission of New

South Wales for the determination of certain questions by the Supreme Court of New South Wales was substantially as follows : -

1. This case is stated at the request of the applicant, Horace ward Clark, under the provisions of sec. 37 (4) of the Workers' pensation Act 1926-1929 (N.S.W.), and refers for the decision of the Supreme Court questions of law which arose in proceedings brought by him before the Workers' Compensation Commission of

_ 2. The applicant claimed £120 compensation from the respondent 'in terms of sec. 16 for the loss of portion (terminal and mid phalanges) the left forefinger, together with £9 medical and hospital expenses

his employment by the respondent while engaged stripping wattle bark. . The respondent denied liability to pay compensation on various s, those relied on at the hearing being : - (a) That the alleged to the applicant was not an injury arising out of and in the eof his employment. (6) That the alleged injury to the appli- nt was an intentional self-inflicted injury. 4. The following facts were proved : - The applicant, a married an, aged twenty-two years, with a dependent wife and child, was ployed by the respondent for some months stripping wattle bark it Lett's Mountain, near Bombala, his remuneration being 25s. per and keep. On 9th February 1933, at 7.50 a.m., he was working certain other employees, the nearest being the foreman named man, who was between 50 and 100 yards away. Applicant had felled a small wattle tree and stripped the bark from the trunk p to the point where the limbs branched from it. The trunk, ich was 6 inches or 7 inches in diameter at the butt, was lying in a ontal position supported at the butt by the stump from which been cut and at the other end by the branches of the tree. ing prized some bark up with a tomahawk, applicant stated that +his left hand he caught hold of a branch about 2 inches thick 4 point 12 inches or 18 inches from the trunk, and with his right

hand attempted to strike the tomahawk into the trunk of the tree which was on his right side, in order that he could use both hands to pull off the before-mentioned bark. In doing so, applicant stated in evidence that the tomahawk on the upstroke struck a limb above his head which deflected the tomahawk and, after hitting the trunk, it glanced off on to his left index finger - almost severing it - wl was resting on the small branch already mentioned. He walked to the foreman, the finger was bandaged, and applicant was taken to a doctor and then to Bombala Hospital, where he received treatment, Before the Commission applicant was emphatic that the tomahawk struck the limb on the upstroke. In the particulars filed with his application the account is: "As he struck a blow another li deflected the axe which struck the tree at an angle and glancing off came into hard contact with applicant's left index finger." respondent in evidence stated that on the Sunday following the accident at the hospital applicant gave him the following accow which he wrote down in applicant's presence : - '* Whilst endea' ing to cut small limb off wattle tree, hatchet came in contact bramble and so altered course of blow, causing same to come in contact with finger," In a statement made to one of the solicitors respondent, applicant, in describing the occurrence, said : - ' I lift the tomahawk with my right hand about a foot, in doing so I struck another limb of the same tree and it turned the tomahawk towai my left hand which was lying on the bough." Later in the same state ment he says : - * The bough deflected my aim when I was on the down blow. Ididnotstrike anything as was lifting the tomahawk." In another statement to an insurance inspector applicant said : "Tn making the blow to stick the tomahawk into the tree tomahawk came in contact with a branch of the tree which caus the tomahawk to glance off and it hit the index finger." App! demonstrated in Court the manner in which he then alleged # occurrence happened. When it was suggested to applicant in i examination that he would not have had to hit very hard to strike the tomahawk into the trunk of the wattle tree he said: " Yes, you have, because the tree being green and sappy the tomahawk would : come out." Applicant was the only witness of the happening of

mitted he had spoken to him at Brogo the day before the hearing. ondent stated in cross-examination that he did not believe pplicant had chopped off his finger intentionally.

_ 5, In arriving at the conclusion that the applicant had not dis- ed the onus of proving that the injury arose out of and in the se of his employment, the Commission was unable to reconcile e statements made by the applicant in the witness-box, and during ie demonstration in Court, as to the happening, with those state- its proved in evidence which he made elsewhere, particularly to mdent and to the solicitor. Applicant's demonstration was convincing, and his demeanour not such as favourably to impress the Commission as to his veracity. When being closely observed in his demonstration he intentionally altered the position of his left mb from a horizontal to an oblique position away from the fore- which was injured. No injury was caused to any other ion of the left hand by the alleged occurrence. His explanation it it required a hard blow to strike the tomahawk into the sap

ing not free from doubt. After making every allowance for ge happenings at accidents, the Commission found it difficult believe that the striking of a branch above applicant's head on e upstroke of the tomahawk caused the deflection of the blade on e downstroke in the crooked course necessary to reach applicant's forefinger, and further that it glanced from the trunk and then applicant's forefinger about 12 inches or 18 inches distant sufficient force to almost completely sever that member. At conclusion of the hearing the Commission was left in doubt as to how the injury arose, and was of opinion that it could not reason- ly find on the evidence tendered that the injury arose out of and 'the course of applicant's employment. 6. The Commission made an award in the following terms : - wing duly considered the matters submitted the Commission s that the evidence does not establish that applicant's injury to left forefinger was intentionally self-inflicted as alleged, nor does establish that applicant's injury arose out of and in the course of

the injury. The foreman was not called, although respondent H.C. oF A. 1934. Ww

his employment with the respondent. Thereupon the Com mii sion orders and awards as follows : - (a) That the award of the Commission herein be made in favour of the respondent. (6) consent the applicant do pay the respondent his costs of and incident to this determination." The Commission submitted the following question of law for the decision of the Supreme Court : - (1) Did the Commission err in law in holding that the evidence

did not establish that applicant's injury arose out of a

in the course of his employment with the respondent ?

At the express request of counsel for the applicant three further questions in the following terms were also submitted for determina- tion by the Court : -

establish that the injury was intentionally self-infli

(3) The Commission having found that the evidence di establish that the injury was intentionally self-infli

should the Commission have held that the applicant w

(4) In the absence of any express finding as to how admitted injury was sustained, did the Commission

in law in holding that the injury received did not arise

out of and in the course of applicant's employment ?

In a " report of injury " completed and forwarded by him to an insurance company the respondent answered the question: Ws the injury sustained in the course of the worker's employment wit you? "Yes"; and the question: State the operation at which the worker was engaged at the time of the accident ? " Stripping bark"; and in " supplementary remarks as to anything affecting the ca or probable consequences of the injury" he stated that "whilst endeavouring to cut small limb off wattle tree hatchet came i contact with bramble and so altered course of blow causing same to come in contact with finger." The report was tendered in evidence by counsel for the applicant.

in the negative, and, as neither party pressed for an answer to Question 4, did not answer that question.

From that decision the applicant now, by special leave, appealed to the High Court.

Ingham (with him Dwyer), for the appellant. The only question hich arises is: Was the injury sustained by the worker caused

accidentally, or was it self-inflicted ? The Commission did not find _ that the injury was intentionally self-inflicted. In the absence of ch a finding it must be taken that the injury was the result of an ident, or alternatively, the case should be sent back to the Com- ion for a definite finding upon this point: otherwise the Court 'll be unable to determine whether the injury arose out of and in course of the employment. The evidence before the Court, cluding the admitted facts, is sufficient to justify a finding in favour [the appellant. In the circumstances the onus is upon the respon- to show that the injury was intentionally self-inflicted (4. G. [ & Co. v. Barkey (1); Lochgelly Iron and Coal Co. Ltd. v. tindores (2) ). The Commission should have made a definite finding

of the Commission are insufficient for the purpose of arriving at a ation the matter should be referred back to the Commission (Maydew v. Chatterley-Whitfield Collieries Ltd. (4)). Before arriving at the ultimate decision the Commission should find whether the orker had merely acted negligently within his employment, or had lone something which took him outside his employment (Taylor v. Lock (No. 1] (5); Partridge Jones and John Paton Ltd. v. James (6) ; Rogers v. Garside (7) ). {Counsel was stopped until after argument had been addressed to the Court on behalf of the respondent].

B. M. Mitchell K.C. (with him Bradley), for the respondent. It vould seem that to an extent, and especially so as to material

• features, the Commission doubted the veracity of the appellant. (1) (1923) A.C. 790. (5) (1930) 23 B.W.C.C, 55. (2) (1929) 22 B.W.C.C. 376. (6) (1933) A.C. 501; (1932) 25 (3) (1916) 1 A.C. 405, at p. 413. B.W.C.C. 92.

The Full Court of the Supreme Court answered Questions 1, 2 and H. ©. or A.

The cases cited on behalf of the appellant are not cases where the tribunal rejected the evidence of the only witness, as here. In the circumstances the appellant has not discharged the onus of proving his case, His evidence as to how the injury was caused having been rejected, there was not any evidence on this point before the Com- 1 mission (Beaumont v. Underground Electric Railways Co. of London (1)). An injury intentionally self-inflicted does not arise o of the employment. The onus of proving that an injury which he has sustained arose out of his employment is upon the worker. That onus is not discharged in cases where, as here, at the conclusion of the evidence, the Commission is left in doubt upon the matter.

Ingham, in continuation of argument and in reply. The evidence - of the appellant is corroborated in material aspects by the evidence of his employer. Practically the whole of the facts were admitted; therefore the Commission was not entitled to disbelieve the appellant. All that the Commission found was that it was not satisfied as to the precise way the injury occurred. It is suggested that the appellant is seeking by fraud to obtain an award of compensation. Fraud must be proved strictly. In cases of this nature there is. : presumption of innocence, and here there is not any evidence that the injury was intentionally self-inflicted. Under the decision in A. G. Moore & Co. v. Barkey (2) the appellant is entitled to an award. If not, the matter should be sent back to the Commission for a specific finding, for a decision as a matter of law, whether the injury arose out of and in the course of the appellant's employment.

Gavan Durry C.J. The Court proposes to ask for further informa- tion. In the meantime the case will stand adjourned.

[The answers made by the Workers' Compensation Commission to questions directed to it by the High Court are shown in the judgment of Starke J. hereunder.]

Ingham. It is difficult to understand what the answers fur - nished by the Commission mean. On the facts admitted by the respondent in a report made by him and tendered in evi- -

'of the appellant (Upton v. Great Central Railway Oo. (1)). Those facts show that he was injured in the course of his employment by a risk he was bound to encounter (Dennis v. A. J. White & Co. (2)), and thus establish a prima facie case sufficient to bring the matter within the scope of the decision in A. G. Moore & 00. v. Barkey (3). There is not any evidence to show that the 'injury was intentionally self-inflicted, or that it was the result of 'something not within the scope of the appellant's employment (Evans v. Raglan Collieries Lid. (4)). In Pomfret v. Lancashire and Yorkshire Railway Co. (5) the test applied was in respect to puetzence, not workers' compensation; therefore that case is

ishable. The Commission was wrong in applying that to this case (Simpson v. London, Midland and Scottish Rail- Co. (6)); Thom or Simpson v. Sinclair (7)). It is the

é Co. (9). The presumption of innocence remains unless and intil rebutted by the respondent. The burden of proof is upon those who allege the doing of a wrongful act (Hire Purchase Furnish- ing Co. Lid. v. Richens (10) ).

EB. M. Mitchell K.C., Bradley K.C., and J. E. Pilcher, for the tespondent, were not further called upon.

Gavan Durry C.J. The appeal should be dismissed with costs.

• Tagree with the reasons about to be given by my brother Dixon.

_ RicxJ. LTagree. The appeal should be dismissed. The answers given by the Commission to the questions put to it have left the a appellant without a case, in spite of the very able argument put

(1) (1924) A.C. 302. (5) (1903) 2 K.B. 718. (2) (1917) A.C. 479, at p. 491. (6) (1931) A.C. 351, at pp. op 378.

(3) (1923) A.C. 790. (7) (1917) A.C. 127, at p. 142. (4) (1933) 26 B.W.C.C. 609, at p. (8) (1918) 119 L.T. 262. 615, (9) (1917) A.C., at p. 490.

dence the Commission ought to have made a finding in favour H.C. or A.

Srarke J. This was a claim for compensation under the Workers Compensation Act 1926-1929 of New South Wales. It appea that the applicant was-employed by the respondent for some montl stripping wattle bark. According to the applicant, he attempted whilst he was so engaged, to strike a tomahawk into the trunk of a tree, but the tomahawk was deflected by a bough, glanced off the

bough of the tree, and severed his left forefinger. The Workers Compensation Commission heard the claim, and at the conclusion of the evidence the Commission made an award in the following terms: '' Having duly considered the matters submitted the Com- mission finds that the evidence does not establish that applicant's injury to his left forefinger was intentionally self-inflicted as alleg nor does it establish that applicant's injury arose out of and in the course of his employment with the respondent."

Thereupon the Commission ordered and awarded, so far as materia as follows: "That the award of the Commission herein be m in favour of the respondent." The Commission then, pursuant sec. 37 of the Act, stated certain questions of law for the Supreme Court of New South Wales. The questions were : - l. Did the Commission err in law in holding that the evidence did not establish that applicant's injury arose out of and in the course of his employment with the respondent? 2. The Commission having found that the evidence did not establish that the injury was intentionally self-inflicted, did the Commission err in law in making its award in favour of the respondent ? 3. The Commission having found that the evidence did not establish that the injury was intentionally self-inflicted, should the Commission have held that the applicant was entitled to receive compensation under the Act? 4. In the absence of any express finding as to how the admitted injury was sustained, did the Commission err in law in holding that the injury did not arise out of and in the course of applicant's employ: ment ? :

The Supreme Court decided questions 1, 2 and 3 in the near i and, as neither party pressed for an answer to question 4, that question was not answered.

proving that the injury arose out of and in the course of his mployment was upon the applicant, and he failed to satisfy the ission that it arose during the work he was employed to do. But this Court nevertheless gave leave to appeal. And it was iously argued on the appeal that the Commission's finding meant at the applicant was injured in the performance of his work, but the Commission was unable to say whether the injury was 'intentionally self-inflicted by the applicant. The facts stated by e Commission are, to my mind, incapable of any such interpreta- . But for greater certainty this Court, following a precedent the House of Lords (Penrikyber Navigation Colliery Co. v.

vards (1) ), inquired from the Commission what the facts stated by it meant. The inquiries and answers are as follows : -

and that before .. ak .. Yes. Before he injured him- self he was working at the tree.

• and up to his doing so .. -. No, The Commission did not accept his evidence that he was working at the tree

when he injured himself. he was working at the tree, but that the Commission on the _ evidence is unable to say whether he injured himself intention- allyornot? - .. Be Aga oF

The decision of the Supreme Court was plainly right. The onus H- ©. or A.

Questions, Answers. it to say whether the worker injured himself

(a) at the tree oe : ees, or (b) by a blow from the toma- hawk? .. ng .. No. The worker injured hi self by a blow from tomahawk. c

It is clear, on these facts, that the applicant has not establish l that his injury arose out of and in the course of his employment. is unnecessary to consider whether the applicant should have succeeded if the first question had been answered in the affirmatit

Dixon J. The appellant claimed worker's compensation for lo of two joints of his left forefinger. He was employed by the respon dent, near Bombala, stripping wattle bark. Before he reported injury, he had been stripping bark from a wattle tree that he hi felled. His case was that, having prized some bark up with tomahawk, he was about to use both hands to pull it off the To leave his right hand free he attempted to strike the tomahay into the tree. But it caught a branch by which it was defle with the result that it cut off the end of his finger. No person ¥ nearer to him than fifty yards at the time.

The Workers' Compensation Commission felt some dissatis- faction with his evidence, particularly with his account of how blow of the hatchet was deflected. The Commission entertain some suspicion that his injury was self-inflicted. In the end it made the following award : - ' Having duly considered the ma' submitted the Commission finds that the evidence does not establi that the applicant's injury to his left forefinger was intentio self-inflicted as alleged, nor does it establish that the applican

respondent." The appellant required a special case under sec. 37 (4), wh the Commission accordingly stated for the decision of the Supre

open to the interpretation that until the delivery of the blow which _ amputated his finger joints, the appellant was working at the tree, but that the Commission was unable to determine affirmatively _ whether the appellant had struck his forefinger unintentionally in the process of work or intentionally. 'The Supreme Court decided the questions submitted by the _ special case against the appellant upon the ground that it meant that the Commission had been unable to accept the appellant's evidence as reliable and had been left with nothing to show that his _ story was substantially or at all accurate. Special leave to appeal from this decision was obtained from this Court, because, as I infer,

the case was considered to raise the question of law whether, when appeared that an injury occurred while the worker was at work, the onus of proving that it was intentionally self-inflicted fell upon employer.

pon the hearing of the appeal, I was inclined to think that n the statement of facts in the special case we should understand that the appellant injured himself by a blow from his tomahawk, md that before and up to his doing so he was working at the tree, _ but that the Commission on the evidence was unable to say whether he injured himself intentionally or not. A majority of the Court,

• however, considered that it was desirable to consult the Commis- sion as to the meaning intended to be conveyed by the special case. The Commission has now informed us that it was unable "on the evidence to say that, when the worker injured himself with tomahawk, he was at the tree, and that it did not accept his evidence that he was working at the tree when he injured himself. his, in substance, confirms the interpretation of the special case adopted by the Supreme Court. It leaves no room for the specific question of law which appeared to arise, because there is no finding _ to the effect that the appellant's injury was sustained when at work. Mr. Ingham contends, however, that the Commission was bound _in point of law to find that at the time of injury the workman was _ at the tree ostensibly working. It must be conceded that the & aterial before the Commission strongly supports such a conclusion

• Court. The statement of facts contained in the special case was H.C. or A.

., Shepherd v. Felt and Teatiles of Australia Ltd. (1); Driver v. War

of fact, but the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law (see

Service Homes Commissioner [No. 1] (2) ). We are not exercising a jurisdiction to control findings of a tribunal of fact, as a Court does upon an application to set aside a verdict of a jury. We are limited to questions of law. Mr. Ingham also contended that, once the explanation was suggested that the injury was self-inflicted, the burden of supporting it by evidence fell upon the employer and unless the Commission were satisfied affirmatively that the injury was self-inflicted, it was bound to hold that the injury arose out of | the employment and could not take into account the possibility of self-infliction as an explanation of the unsatisfactory proofs offered - by the worker. I do not agree with this view. As I understand the law, there is no rule requiring affirmative proof that an unlay act or misconduct has actually taken place when the possibility its occurring is relied on as a reasonable explanation of facts other- wise tending to prove an issue against the party suggesting it. The general rule is laid down in Doe d. Devine v. Wilson (3). That was a case where the authenticity of a document was in question and it was sought to throw the burden of proving it to be a forgery on the party impugning it. Speaking for the Privy Council, Sir John Patteson said: "In a civil case the onus of proving the genuine- ness of a deed is cast upon the party who produces it, and asserts its validity. If there be conflicting evidence as to the genuineness, either by reason of alleged forgery, or otherwise, the party asserting the deed must satisfy the jury that it is genuine. The jury must weigh the conflicting evidence, consider all the probabilities of the case, not excluding the ordinary presumption of innocence, and must determine the question according to the balance of those prob- abilities" (4). Self-inflicted injury or other misconduct as an explanation of what might otherwise be due to accident appears to me to be in the same category.

(2) (1924) V.L.R. 515, particularly at pp. 533-534, (3) (1855) 10 Moo. P.C.C. 502, at p. 531; 14 E.R. 581, at p. 592. (4) (1855) 10 Moo, P.C.C., at p. 531; 14 E.R., at p. 592.

shall be payable for self-inflicted injury (sec. 7 (3) (c) ) does not e eS less Eoosary, ta athe applicant Should Aliana?

out of the employment. It may be that, if he proves that hile actually at his work he received such an injury as that now in stion, this onus must as a matter of law be treated as sufficiently a unless and until the employer shows that the injury intentionally inflicted. But when the place and occasion of njury remain unproved, the so-called presumption of innocence annot be used to shift the burden of proof. It is only one of the ents of probability to be taken into account by the tribunal of

the appeal should be dismissed with costs. RNAN J. I agree.

e existence in the Act of an express proviso that no compensa- H.C. or A.